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Because employees have embraced social networks as the new “water coolers,” issues surrounding discipline and termination of employees who engage in objectionable activity on social media have become a major concern for employers. Such activity can negatively affect the employer’s image and hurt the bottom line.
Although at-will employees generally may be terminated for their use of social media (including disclosing confidential member or CU data), employers need to understand that certain uses of social media are protected under the National Labor Relations Act, which guarantees employees’ rights to organize and collectively bargain with their employer.
The NLRA does not address social media. Nonetheless, the National Labor Relations Board, the agency that enforces the NLRA, routinely resolves cases involving conduct on social media, which in turn govern the evolving issues associated with employee use of social media. Outcomes of cases are sometimes inconsistent, often unpredictable, and can turn on seemingly trivial factual differences. The one constant, however, is that employees are entitled to the same protections under the NLRA in a social media forum as they would be if the communication was face-to-face in, say, a workplace break room.
The key factual question that employers must confront before making any adverse employment decision based on a post, blog or tweet is whether the employee has engaged in protected, “concerted” activity. Section 7 of the NLRA provides that “employees shall have the right to . . . engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” An employer may not interfere with, restrain, or coerce employees to exercise their guaranteed rights.
The NLRA does not define the universe of “concerted activities”; however, the NLRB has concluded that the phrase was intended to mean “individuals united in pursuit of a common goal.” Thus, “an activity is concerted when an employee acts ‘with or on the authority of other employees, and not solely by and on behalf of the employee himself.’” In general, concerted activity is found “[w]hen the record evidence demonstrates group activities, whether ‘specifically authorized’ in a formal agency sense [such as an employee union], or otherwise.”
In the context of social media, concerted activity has been found where individual activities are an outgrowth of collective employee concerns or where the individual seeks to initiate or to induce/prepare for group action, or bring group complaints to the attention of management.
On the other hand, activity that does not elicit any responses from co-workers, anticipate group action, involve a call to action, express a collective concern, and/or go beyond mere “griping” may not be deemed “concerted.” Thus, in one case, a bartender was lawfully terminated for complaining to his step-sister on Facebook about not having received a raise in five years doing others’ work without tips, because he did not discuss his posts with any co-workers and no co-workers responded to them.
What is Protected?
To determine whether an employee’s social media activity is a concerted activity, several questions worth asking are:
- Does the post mention any terms or conditions of employment?
- Did the employee discuss the post with any co-workers before or after writing it?
- Did any co-workers respond? If yes, do they share a common concern, or are they just commiserating and/or expressing amusement or sympathy?
- Does the post advance any cause other than the writer’s own?
One of the leading examples of concerted activity over social media is a case where five employees were fired after voicing concerns on Facebook about a co-worker who was threatening to complain about their job performance to supervisors.
After considering the postings, the NLRB ruled that they constitute protected, “concerted activity” because they were a first step toward group action to defend themselves against a co-worker’s accusations and, therefore, implicated the terms and conditions of their employment. The NLRB stated that “[explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by [the NLRA].”
When analyzing the protections afforded to posts, it is important to differentiate between multiple posts about the same issue and successive posts about different issues, and to clearly identify which posts constitute the basis for any adverse employment action.
This distinction arose in a case where an employee made sarcastic Facebook posts stating that an employer’s food offering at a promotional event (a hot dog cart) was not classy. Later that day, the employee also posted pictures and commentary about an incident involving a potential customer’s teenage son driving a car into a pond.
When analyzing these posts, the NLRB found that the first post (about the hot dog cart) was a concerted activity because it triggered responses from co-workers and “logically grew out of prior concerted activity.” However, the NLRB ruled that the second post was not entitled to protection because it “had no connection to any of the employees’ terms and conditions of employment.” Because the second post (about the car accident) was the primary reason the employee was fired, the NLRB found no NLRA violation, even though the first post represented concerted activity.
If concerted activity is found, the employer’s next step is to determine whether the activity is protected. The NLRA protects the following online activities:
- discussing working conditions;
- protesting supervisory actions;
- attempting to maintain the status quo;
- discussing criticisms of employees’ job performance (this includes both criticizing another’s performance or discussing others’ criticism of one’s own work);
- criticizing management’s refusal to address previously presented concerns;
- creating a pro-union Facebook page; and
- complaining about sexually derogatory remarks made by a manager.
Generally, an employer cannot legally take adverse action against the employee for these types of protected social media activities. (In addition, some states, such as California, Colorado, North Dakota, and New York, have other statutes that provide additional protections to employees for behavior outside of work. Employers in these states should be aware of these statutes as well.)
But even these protected activities can lose protection, and become proper grounds for termination, if the employee’s statements and/or posts:
- are egregiously offensive;
- constitute insubordination;
- are abusive and unrelated to terms and conditions of employment;
- threaten harm; or
- disrupt the workplace.
Employers should understand, however, that concerted activity on social media does not lose its protection simply because a post is rude, sarcastic, disrespectful, or uses foul language. Although the line between “insubordination” and “disrespect” may not always be clear, the NLRA protects a broad array of conduct, and once the NLRB finds protected activity, that protection is not easily lost.
Thus, the NLRB has ruled that posts calling a supervisor a “scumbag,” “liar,” and worse were not so egregious as to lose the protection afforded to statements discussing supervisory actions when those labels were used in online conversations with co-workers.
In order to determine whether concerted activity has lost its protection, employers should consider:
- the place of the discussion;
- the subject matter of the discussion;
- the nature of the outburst; and
- whether the outburst was in any way provoked by an employer’s unfair labor practice.
Update Your Policy
Because the legal implications of social media activity are still being defined, all employers should have specific, well-drafted policies in place that address employee use of social media and the adverse employment actions that can result from unauthorized or illicit online activity.
This article does not explore appropriate social media policies in any depth, but employers should know that the NLRB considers it impermissible for an employer to maintain a policy that would tend to chill employees’ exercise of their right to engage in collective activity.
Thus, as a general rule, explicit restrictions on an employee’s right to organize or engage in collective activity regarding the terms and conditions of employment are unlawful. Implicit restrictions on these rights are also impermissible if:
- employees would reasonably construe the language of a social media policy to prohibit concerted activity;
- the rule was promulgated in response to union activity; or
- the rule has been applied to restrict the exercise of rights guaranteed under the NLRA.
When considering implementing a social media policy, employers should reference the sample social media policy approved by the NLRB and follow these best practices when crafting their policies:
- Do not expressly prohibit protected concerted activity.
- Make policy provisions as specific as possible and include examples of prohibited conduct.
- Avoid overly broad, ambiguous and/or all-encompassing terms and phrases.
- Do not require employees to check with, or seek permission from, employers prior to posting anything.
- Do not rely on “savings” clauses (a catch-all disclaimer) because they generally do not cure otherwise unlawful provisions.
In sum, employers confront great risks when making adverse employment decisions based on social media activity. While case law and administrative decisions relating to social media are constantly evolving, the NLRB grants employees substantial protection for engaging in concerted activity on social media related to the terms and conditions of employment—just as with other, more traditional methods of communication.
Nevertheless, an employee may still be terminated for making highly offensive comments entirely unrelated to work or for expressing individual gripes that do not anticipate group action. Therefore, the further removed from the workplace, the more latitude an employer has to discipline or terminate.
In all cases, employers should carefully scrutinize and fully investigate posts and tweets to make sure no protected rights are implicated, and should confer with counsel whenever they are unsure of whether certain action or inaction may cause liability*.
*Note: This article only addresses the discipline and discharge of private-sector employees in the context of social media. The discipline or discharge of public-sector employees raises other issues under the First Amendment and certain tenure and civil service statutes, which are not covered.
John Hammerle, Matthew Campobasso and Richard Kienzler are attorneys in the Litigation Practice Group at Freeborn & Peters LLP in Chicago. Read more about their take on social media and the law at www.esqwiredlaw.com. You can also learn more about the firm’s Credit Union Industry Team, which provides strategic counsel to credit unions across a number of areas, at www.freeborn.com.
